Tip 1984: Dig up the past for better legislative interpretation

Tip 1984: Dig up the past for better legislative interpretation
In 1985, the year I entered law school, the Queen’s Printer published the new and last Revised Statutes of Canada. In 1990, 23 years ago this month, I took my place among the new crop of lawyers. That same year, Ontario published its last revised statutes.

We found the blue volumes of legislation great time-savers. Without them, we had to trace legislation to the date of enactment and annotate all the amendments from that time forward. Looseleaf volumes, called citators, came in handy, but we never trusted them 100 per cent. Failure to complete the legwork could result in advising a client about a law that the legislature may have amended or repealed since the latest consolidation.

As the years passed, the necessity of tracking amendments after 1985 and 1990 resurfaced. This could be tedious work, so articling students did most of it. That is, except when I discovered my opponent had relied on a law that had since been repealed, or on a law that had not been enacted at the time of the event or transaction. That kind of discovery often meant victory in court or an early settlement. More mundanely, the historical origin of statutes and subsequent changes were essential interpretive tools.

Today, recent calls to the bar have been weaned on the teat of the Internet, and consider themselves lucky to have been spared the experience of manually noting up legislation and regulations. Official government sites, as well as commercial legal research databases, now provide up-to-the minute updates on amendments.

Overworked and multitasked, we read screens of laws and accept them at face value, like facts stated in tweets or blogs. Technological innovation has had an unintended effect on the long-term progress of law. Internet-based legislative sites provide the latest versions of laws. In so doing, they necessarily erase legislative history from our consciousness. Lawyers interested in the provenance of the current version of an act or regulation can still research it, but it is an oft-overlooked step or an untaught skill. As a result, we are now witnessing the accelerated decline of historical analysis of legislative text.

Why should we care? Reading law is not a passive exercise. It continues to be the core expertise of every lawyer.

To enact is to do: A law’s history tells us its purpose
There is a reason why pieces of legislation are called acts of the legislator. They are decrees of the people’s will. When I served as Ontario Bar Association president, I co-signed law reform submissions prepared by dozens of practice sections. It did not mean I fully “‘got”’ what, for example, the pensions and benefits section might have had to say in a technical submission. However, I understood enough to dip into the legal and political dialogue between legal stakeholders and government in a highly specialized field. If, after proclamation, the new law or amendment does not work as intended, the act can be amended and the legislators can once again cross their fingers. There is an element of trial and error to lawmaking which we often fail to appreciate. Legislation, like all important human acts, has a start, a middle, and an end.
Comparison between historical and ahistorical legislative interpretations
A stark contrast between the historical and ahistorical approaches to the lawyer’s work appeared last month, between the Supreme Court of Canada’s decision in Sun Indalex Finance, LLC v. United Steelworkers and the Ontario Court of Appeal’s decision. An issue that did not decide the case, but nevertheless illustrated the perils of ignoring legislative history, revolved around the inclusion of wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act. These were employer liabilities arising only on winding up a pension fund. In simple terms, payment of wind-up deficiencies might be considered a “topping up” of a pension fund to protect pension plan beneficiaries.

At paragraphs 93-112 of its unanimous decision, the Court of Appeal held the wind-up deficiencies were part of a statutory deemed trust. In doing so, the court applied a textual interpretation largely based on a semantic analysis and reliance on case law interpreting the legislative policy of the act. The court applied a reader-centric interpretive method. However, statutes were not meant specifically for judges to interpret, any more than scriptures were meant to be read only by monks.

The SCC upheld the appeal decision 4-3 on this issue alone. (iIt overturned the Court of Appeal on a separate ground.). However, the process by which the Supreme Court judges arrived at the same result was more transparent from the non-lawyer perspective. Telling the story about the life of a statute — explaining the work of the legislature — is in tune with the public’s expectation of the judicial branch of government.

The debate centred on the minority judgment penned by Justice Thomas Cromwell. His review of the act’s legislative history started with its origins in 1973. Each incarnation of the statutory provision made it clear the deemed trust only applied to ordinary accrued or due liabilities, and not to new liabilities on winding up. In so doing, he demonstrated, “both the legislative evolution and history of the PBA show that it was never the legislature’s intention to include the wind-up deficiency in the deemed trust.” He later found the Hansard reports from the legislative debates showed, at least as of 1983, “virtually irrefutable evidence of legislative intent to do exactly the opposite of what the Court of Appeal held in this case had been done.”

The majority opinion, held by Justice Marie Deschamps, agreed with Cromwell up to the 1983 amendments. Deschamps then parted company with him by finding an ambiguity in the 1987 text in favour of including the amounts in the deemed trust. She disagreed with Cromwell and found the removal of an exclusion for the wind-up deficiency from the deemed trust imported a significant departure from the status quo as of 1983. In her view, “legislative history leads to the conclusion that adopting a narrow interpretation . . .  would be contrary to the Ontario legislature’s trend toward broadening the protection.”

The legislature acted, and the court now gave effect to the act. Whatever one’s view of these two interpretations, the historical explanation gives a more satisfactory understanding of the legal reasoning because it exposes the statute as a legal dialogue within a democratic process. In contrast, statutory interpretation relying on a static current text and a smattering of interpretive case law makes legislation look like it was never intended for the public to follow. Read the two judgments, and make up your own mind: Which one reads like a dialogue between two branches of government about a living political document? Which one reads like the reading of a last will and testament?

Retooling technology and practices to make legislative history more accessible

In law, the always-current nature of electronic legislative databases means our search for a law no longer has to start with its origins, or even its last consolidation. Instead, the latest version is served up on a plate. This can distort our perspective  because we are more prone to apply current legal standards to a past event. If traditional jurists worry about creeping revisionism of the kind illustrated in George Orwell’s 1984 (and more recently in Haruki Murakami’s 1Q84) it is because current information is so easy to obtain, and historical and experiential knowledge requires hard, repetitive work to maintain.

Our legislative webmasters can counteract the ahistorical nature of the modern legal text by making electronic databases “smarter.” Annotating links to embedded legislative history from individual legislative sections would create a “deeper” database. In the meantime, there are effective strategies you can employ in your practice to improve your legislative literacy:

•    Reduce your citation of superfluous case law, the crutch of the common law lawyer and judge. Look for broad consensus among judgments instead of picking out distinguishing features. Both courts and corporate legal officers prefer consensus opinions to the instability of conflicting judgments. In an ideal world, the best statutes require no judicial precedents to apply to emerging facts.

•    Research the historical background to legislation, either through law reform commission reports, archival legal news, or other sources. Find out what was happening in the world outside law. Legislatures enact laws in response to political, economic, or social exigencies.

•    Get involved in making law. Sign up for a working group at your bar association. Publish an article. Respond to a Green Paper. If you help draft a parliamentary bill, you will gain an appreciation of lawmaking. Next time you log in to your favourite online statute site, you’ll read much more than the words on the screen.

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